Perspective: What the Supreme Court Doesn’t Know About Crack

It’s always possible to crack a good cocaine joke — I’m as guilty as the next person — and there were more than a few of them in a recent syndicated column from the Washington Post about the Supreme Court’s somewhat bumbling deliberations over a case involving sentencing disparities between crack and powder cocaine.

The robed ones have deliberated over cocaine at least half a dozen times in recent years, taking up the drug in some form in each of the past four years. On Monday, the justices took another hit — and this one was particularly mind-blowing.

For one thing, the law they were interpreting — the sentencing disparity between crack and powder cocaine — was changed by Congress last year, making the argument largely inconsequential.

Ba-dum-bum! The column goes on to highlight the Justices’ supreme ignorance about cocaine. But the last paragraph, above, stopped me: it isn’t accurate and it glosses over a serious and distressing issue — that crack still triggers a higher minimum prison sentence (affecting mostly blacks) than powder cocaine (affecting significantly more whites than crack).

While Congress did reduce the crack-versus-powder disparity last year, it did not eliminate it. Now, rather than being sentenced to 100 times more time in prison for crack by weight, crack offenders get “only” 20 times more. As The Atlantic editor Ta-Nehisi Coates memorably put it, that’s only “1/5 as racist as it used to be.” If it were Milbank himself facing prison, I imagine this difference wouldn’t seem so “inconsequential.” (More on Time.com: Can You Use Crack ‘Socially?’ Addiction Myth Watch: Charlie Sheen Edition)

Meanwhile, the Justices don’t seem acquainted with the necessary cocaine-related facts. For instance, Milbank reports, Justice Scalia claimed that the use of baking soda during manufacturing is “essential” to the definition of crack. That’s not entirely true: using baking soda is typical, but crack can be made with other chemicals, such as ether and ammonia. Also, freebase cocaine, which was around before crack was even introduced, is often made using baking soda as well. (I know this because, unfortunately, I did it.)

In reality, crack is cocaine; “crack” is just a street marketing term for ready-made smokeable cocaine that is not water-soluble. The difference is that crack dissolves in fat rather than in water, which means that it can’t be injected and that it gets to the brain faster when smoked. These are the properties that lead people to claim that the “high” from crack is more intense than from powder cocaine, and creates more powerful cravings; this is also where lawmakers and many others who faced the crack epidemic went wrong. (More on Time.com: New Hope For An Anti-Cocaine Vaccine)

It’s true that smoking crack produces a more intense high than snorting powder — but that doesn’t mean people don’t use cocaine in powder form to get the same results. Freebasers add baking soda to powder and make crack for themselves (i.e., it’s just not purchased ready-made like crack), and, more importantly, users can inject powder, which produces a high just as addictive as smoking crack. (This, too, I can tell you from misguided personal experience — but there’s also research data on it dating back to the early 1980s).

Given these facts, the sentencing disparity has never made any sense. But as a way to lock up African Americans, the crack sentencing laws have proved highly efficient. Before these laws were enacted in 1986, blacks served on average 11% more time in prison than whites for similar drug offenses. Afterward, their sentences doubled those for whites.

Seventy-nine percent of those incarcerated for crack crimes are black, while 10% are white. For powder-related offenses, however, 17% of those convicted are white and 28% black. When the sentencing disparity was 100-to-1, this meant that on average black cocaine offenders spent an extra two years in prison compared to whites. Changing the ratio to 20-to-1, therefore, is an improvement but far from justice. (More on Time.com: 4 Tips for Staying on the Wagon)

The sentencing-disparities case before the Court now centers on the definition of “cocaine base:” is it identical to crack or powder? Given that the difference may lie in a mere box of baking soda, and that injecting powder is just as addictive as smoking crack, the argument makes as much sense as trying to determine the number of angels that can dance in a crackpipe.

That’s silly, but the racial injustice that has resulted from the false distinction is not. As of 2001, the odds of a black man going to prison at some point in his life were nearly 1 in 3. In contrast, only 6% of white males ever do prison time. As of 2007, 1 in 10 black adults was either incarcerated, on probation or on parole —and most of these sentences were a result of the drug war. Some 1.2 million black children have an incarcerated parent. These facts should prompt rage, tears and action to change the situation — not laughter.